Sunday, April 7, 2013

liberty, and the rule of law.

Religious Liberty Helped Create America’s Greatness, Can We Really Survive Without it?

In midst of the modern, mindless battle to drive religion completely from American life, a small and inconvenient fact has been ignored: Virtually every important, original American idea is a product of Christianity. Further, had these doctrines never been developed, the US would arguably not been nearly as productive, free or happy. These ideas involve property, liberty, and the rule of law.

oday the government bears down upon the Constitution, menacing the Bill of Rights and our entire way of life, offering to trade our freedoms for the supposed security of state control. Our very life, liberty and pursuit of happiness hang in the balance. We would do well to remember that the source of our original constitutional doctrines come from natural law, common law and our profound biblical heritage. For once we lose our freedoms, liberties and economic vitality, we are unlikely to taste these ever again. And do we not owe our children and the subjugated of other countries a duty to protect this irreplaceable inheritance? This article surveys some of the more important American doctrines which came down from a biblical antecedent.

I. Magna Carta

Magna Carta, or the Great Writ, is considered the centerpiece of Anglo-American liberties. It is fascinating to therefore discover that this great work was negotiated and drafted between King John and the lords by Stephen Langton, Archbishop of Canterbury who interpolated biblical ideas into the final draft. (Langton was the same person who introduced chapter and verse into the modern Bible.) Magna Carta offersthe biblical idea of putting the law above the king. (see Why Separating Church & State is a Fool’s Errand: Consider Magna Carta’s Origins)

II. Property & Natural Rights

The emergence of modern expressions of Natural Law and Natural Rights is traced by Brian Tierney in The Idea of Natural Rights, to a debate between The Franciscans and Pope John XXII. The argument concerned whether the followers of Saint Francis had a right to declare themselves to be in a property-less state. This debate was famously joined by William of Ockham.
Natural Law itself is defined by Ockham as law “in conformity with a natural reason that never fails.” An example would be the Ten Commandments prohibitions against lying and adultery, being a kind of enlightened understanding of law. Pagans also had a lesser natural law with which to reason, such as that described by Cicero.
Ockham argued that while anyone could give up any rights they had through Christian liberty, an immutable law was the right to self-preservation which could not be taken from anyone, nor could it be relinquished. Further, God had given mankind the right to property after the Fall and this could not be arbitrarily taken away from mankind. Beyond, Ockham claimed the Pope could not take away the Christian liberty of his subjects, whom he also gave the right to choose their own rulers. These conclusions made Ockham a lifelong enemy of the papacy, needless to say.

III. Democracy

A. Foundation of Democracy in Reformation

Modern democracy is not from the ancient Greeks. According to GP Gooch in The History of English Democratic Ideas in the Seventeenth Century, modern democracy is a child of the Protestant Reformation. The medieval Catholic Church tended towards sympathy to kings and kingdoms. Contra, the Reformation, with its emphasis on the individual choice of each Believer, inevitably embraced democratic principles. Writes Gooch,
The Reformation largely owed its origin to the enunciation of two intellectual principles, the rightful duty of free inquiry, and the priesthood of all believers. Its justification could be found in no others. Free inquiry… led straight from theological to political criticism, and the theory of universal priest-hood indicatedthe general direction of the investigation. The first led to liberty; the second to equality. The importance of the fact that the principles of modem democracy, however mutilated by a theocratic bias, advanced under the wing of the Reformation, is difficult to exaggerate. In the emancipation of the people, the Reformation played a part it is impossible to overlook.
Gooch singles out the Huguenots, the French Protestants, as being particularly important in this history. This was elucidated in the anonymous Vindidae contra Tyrannos, A Defense of Liberty Against Tyrants, which for its first three questions which give rise to a Natural Law democratic political impulse:
  1. Whether subjects are obligated to obey rulers who issue commands contrary to the law of God.
  2. Whether it is lawful to resist a ruler who violates the law of God, or ruins His Church; by whom, how, and to what extent it is lawful.
  3. Whether it is lawful to resist a ruler who is oppressing or ruining the country, and how far such resistance may be extended; by whom, how, and by what right or law it is permitted.
Here, the concept of the sovereignty inherent in the people is well expressed. But it was the debate over the Divine Right of Kings which brings forward the debate over where the locus of sovereignty lies.

B. Democracy as American Popular Will

By the time America was founded, the notion of popular sovereignty of the people was well-established. The Anti-Federalist Paper #1 states,
In every free government, the people must give their assent to the laws by which they are governed. This is the true criterion between a free government and an arbitrary one. The former are ruled by the will of the whole, expressed in any manner they may agree upon; the latter by the will of one, or a few.
James Madison, who researched, conceived of and drafted the Constitution decided that a mixed state of a democratic republic would best push off the danger of tyranny by either the few, or the many, according to Lutz.

IV. Constitutionalism

A. Medieval Constitutionalism—Jean Gerson

Quentin Skinner, in The Foundations of Modern Political Thought, The Age of Reformation (Vol. II) explains how the beginnings of modern constitutional ismare associated with the Gregorian papal reform of the 12th century. As the papacy’s power was maximized, scholars and high ranking members of the Church began to ask what remedies would exist if the Pope became power mad. This resulted in the Conciliar Movement, according to Skinner.
Jean Gerson, a talented scholar during the Great Schism summed up this notion, being that the Church should be properly conceived as a constitutional monarchy. Skinner writes:
In defending the authority of the General Councils over the Church, Gerson in particular committed himself to enunciating a theory about the origins and location of legitimate political power within the secular commonwealth. And in the course of setting out this particular argument, he made two major and deeply influential contributions to the evolution of a radical and consitutionalist view of the sovereign State.
Skinner goes on to explain there were two independent kingdoms—the religious and secular. This idea wasthen amplified into the thesis that, under the law of nature, no leader of a free people can assert a power greater than the people have in themselves. Puritan influenced John Locke developed this conviction in his own theory of constitutional government.

B. Modern Constitutionalism—John Locke & America

Hans Aarsleff calls John Locke, “the most influential philosopher of modern times.”Locke wrote, “that all government in the world is merely the product of force and violence, and that men live together by no other rules than that of the beasts, where the strongest carries it…” His theory of constitutionalism greatly impacted the Founders. Locke wrote about the proper role of limited government, in The Second Treatise of Government in Chapter XI:
The power of the legislative being derived from the people by a positive voluntarygrant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands.
The United States boasts the first modern constitution ever composed. Donald S. Lutz, in The Origins of American Constitutionalism, describes the development of this work. The earliest American expressions of law, the Mayflower Compact and Pilgrim Code, helped develop the later notion of our Constitution as a kind of church covenant. (seeAmerica’s Constitutional Foundation of Biblical Covenant.) In other words, our Constitution is modeled upon the early American covenants which were themselves taken from a biblical model.

V. Freedom of Religion

The greatest work in the history of the Freedom of Religion is John Locke’s A Letter Concerning Toleration. His position was that it was the very nature of religious belief to be a free will choice. Further, Locke’s views agreed with his Puritan upbringing which accepted that only God could cause a person to have faith. It was under the mighty preaching of the Vice-Chancellort at Oxford, John Owen, that Locke would have been acquainted with this idea. Says one writer,
“We have a right to religious freedom because the nature of faith itself is contradicted by compulsion.” Locke correctly observed that the mind “cannot be compelled to the belief of anything by outward force,” but laws, ultimately, are upheld by force. However, such coercion is not reconcilable with authentic religious belief. As Locke concludes, “The magistrate’s power extends not to the establishing of any articles of faith, or forms of worship, by the force of his laws. For laws are of no force at all without penalties, and penalties in this case are absolutely impertinent, because they are not proper to convince the mind.”

VI. Common Law

The British Common Law is arguably the greatest and most influential legal theory in modern history. It was not simply the law behind the justice system in England, but also the driving ideology of society itself. It was also deeply influenced by biblical mores. James R. Stoner, in Common-Law Liberty, Rethinking American Constitutionalism, explains how the English Common Law theory arose upon a background of pagan philosophy, and built a jurisprudence to a great extent upon biblical revelation. It is notable that constitutionalism and the Bill of Rights theories are both prominent products of this school of thought.

VII. Rule of Law

It is a religious understanding of law which places the law above the king. For example, Saul in the Old Testament loses his kingdom when he breaks the law. This ideal was articulated by the writer and divinity professor of Saint Andrews, Samuel Rutherford, in his Lex Rex, or Law is King. He wrote,
Assert. 1.—The law hath a supremacy of constitution above the king:—1. Because the king by nature is not king, as is proved; therefore, he must be king by a politic constitution and law; and so the law, in that consideration, is above the king, because it is from a civil law that there is a king rather than any other kind of governor.
VIII. Federalism
The very root term for federalism is the Hebrew word for covenant, foedus. When James Madison studied world history he found the ancient Jewish government the most efficient, and so instituted their theory of rule. This is how the US ended up with federalism, the most efficient type of government ever conceived. (see Sources of American Federalism: Founders, Reformers & Ancient Hebrews.)


Does God really want Americans to totally remove all vestiges of the Bible from public life? Even if it was the Bible that created our core beliefs and practices, so successfully used these many years? Why should Americans stand aside as our great republic is plundered and our rights canceled when the entire world needs us for leadership and support? If this battle is not worth fighting, then nothing is worth going to war over. Let us stir ourselves to resistance over our incomparable biblical and American heritage before it is too late, and the world suffer a fatal blow to freedom, faith and liberty.


Kelly O’Connell

is hosts American Anthem on CFP Radio Sundays at 4 pm (EST).

Kelly O’Connell is an author and attorney. He was born on the West Coast, raised in Las Vegas, and matriculated from the University of Oregon. After laboring for the Reformed Church in Galway, Ireland, he returned to America and attended law school in Virginia, where he earned a JD and a Master’s degree in Government. He spent a stint working as a researcher and writer of academic articles at a Miami law school, focusing on ancient law and society. He has also been employed as a university Speech & Debate professor.

He then returned West and worked as an assistant district attorney. Kelly is now is a private practitioner with a small law practice in New Mexico. Kelly is now host of a daily, Monday to Friday talk show at AM KOBE called AM Las Cruces w/Kelly O’Connell

Kelly can be reached at:

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